FBO_J&A_Programmtic_Consultation_ESA_SD_Redacted.pdf

U.S. Department of Homeland Security Federal Emergency Management Agency Denver Federal Center, Bldg. 710a.

Denver, CO 80225

JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION

1. In accordance with Federal Acquisition Regulation 13.106-1(b)(1), I hereby determine that the drafting of a state wide Programmatic ESA Consultation documents for the Topeka shiner in South Dakota listed on is available from only one source, and competition is precluded for the reasons indicated below. There are no substitutes available.

2. This acquisition is restricted to the following source:

Company Name: True North Environmental Consultancy, LLC Company Address: Bismarck, North Dakota Company Point of Contact and Phone Number: Kevin Shelley (701) 255-3534

3. The Drafting of a state wide Programmatic Biological Assessment and Biological Opinion for South Dakota is estimated to cost

4. The following statutory authorities (including applications and limitations) permit contracting without providing for full and open competition:

(Please check one of the following authorities)

6.302-1 -- Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements.

X 6.302-2 -- Unusual and Compelling Urgency.

6.302-3 -- Industrial Mobilization; Engineering, Developmental, or Research Capability;

or Expert Services.

6.302-4 -- International Agreement.

6.302-5 -- Authorized or Required by Statute.

6.302-6 -- National Security.

6.302-7 -- Public Interest.

<Provide justification to support the use of this authority, to include a specific statement of the impact on government operations, financial or otherwise>

We are requesting contract assistance for completion of a Sec. 7 Endangered Species Act

(ESA) programmatic consultation agreement between FEMA and United States Fish and Wildlife Service (USWFS). It is highly technical and is necessary to meet the requirements of the ESA, Sec. 7 (a)(1) and 7(a)(2). FEMA does not currently have staff with the required skill set and availability to produce this type of document in a timely manner. Document is needed as soon as possible to facilitate delivery of the DR-4440 Public Assistance program. According to the ESA, Federal Agencies must consult the USFWS when impacts to threatened and endangered (T&E) species may occur due to the agency’s actions. This means every project FEMA proposes to fund must be reviewed to determine if a project “may affect” a T&E species. A number of FEMA actions (culvert/bridge projects, etc.) have the potential to affect an endangered species of fish, the Topeka shiner (TS), that inhabits many of the water-ways affected by the flooding as a result of DR-4440-SD. In the past, USFWS in South Dakota has indicated that consultation between FEMA and the USFWS would be expected for any projects involving work in the water in the 28 counties where the TS is known to occur.

There are 768 eligible applicants identified for DR-4440-SD. Of those, 548 (71%) are located within counties with Topeka shiner. Of the 401 Damage Inventories (DI) currently in Grants Manager, 371 (93%) are in counties with Topeka shiner populations.

Of those, 71 (52 culvert and 19 bridge) projects have been identified that will require consultation with USFWS. Therefore, approximately 20% (71 of the 371 DI in TS counties) are water-related culverts/bridges needing ESA consultation. Assuming this is a representative sample and adjusted to the full anticipated scope of DR-4440 (per SDOEM ~10,000 DI) approximately 7100 projects can be expected in counties with Topeka shiner resulting in 1420 (7100 x 20%) consultations with the USFWS. Average cost of individual consultations is around .

Federal Regulation prohibit the USFWS from reviewing project impacts that occur prior to the initiation of the consultation. This means that completed projects that hit the EHP queue for review cannot initiate consultation. Everyday more applicants move to prepare their communities for ice flows and next year’s spring thaw, they are beginning and completing work before the FEMA grants for those damages are obligated or reviewed by EHP for compliance with environmental law. Until FEMA has a programmatic consultation with USFWS in place for South Dakota, projects in water in topeka shiner counties have a high risk of non-compliance with the ESA, jeopardizing their FEMA funding, and potentially resulting in civil penalties through sec. 11 of the ESA.

This document would be the first of its kind in Region VIII. It would enable us to inform applicants of USFWS’s minimization measures before the projects went through Public Assistance Model, allowing the applicants to start disaster repairs months earlier, while giving them codified steps to remain in compliance with ESA. This document would allow projects that have impact to endangered species to begin before those projects are in the EHP review queue. This document front loads FEMA’s consultation obligation under Sec. 7 of the ESA, significantly streamlining EHP review while significantly reducing the chances that projects result in a non-compliance determination.

5. A description of the proposed contractor’s unique qualifications or the nature of the acquisition that requires the use of this authority:

True North Environmental Consultancy, LLC is owned by Kevin Shelley. Kevin was the lead USFWS officer in the State of North Dakota for the last five years, he has extensive experience writing Biological Opinions from within the USFWS and has worked with many FEMA Disasters in North Dakota. He has a total of 27 years’ experience work for the USFWS. FEMA EHP met with the command staff of the USFWS South Dakota filed office to find a solution to our large potential non-compliance in response to DR-4440-SD. South Dakota USFWS, said FEMA could have the True North Environmental Consultancy, LLC draft the Programmatic BA/BO in six weeks and if Kevin was responsible for the drafting of this document, USFWS SD would not require the 135 days to consult, but would instead be willing to accept Kevin’s work (due to years of established trust) without the formal consultation timeline. This option saves months of time off the consultation process and will allow FEMA applicants to complete their much need repairs while satisfying Sec. 7(a)(1) and 7(a)(2) of the Endangered Species Act, and categorically reducing the number of ESA non-compliant projects related to DR-4440-SD, further ensuring FEMA’s Public Assistance program is able to deliver disaster assistance.

6. A description of the market research conducted and the results, or a statement of the reason market research was not conducted. (“Market research” means collecting and analyzing information about capabilities within the market to satisfy agency needs):

Due to the special trust of the USFWS in South Dakota with the consultant in question, the USFWS has stated they would accept True North Environmental Consultancy LLC to deliver the Biological determination on their behalf. A fact that may not extend to any other consultancy. This trust is based on Kevin Shelley’s extensive tenure working for the USFWS himself, and years of collaboration between the to USFWS field offices. This trust between USFWS in South Dakota and True North Environmental Consultancy LLC will greatly expedite FEMA’s obligations under Sec. 7(a)(2) of the ESA, eliminating the need for applicants to wait to start disaster repairs until their projects are reviewed by EHP. Further allowing FEMA EHP to review projects that are 100% completed, significantly reducing the chances our applicants’ projects end in ESA non-compliance.

7. A statement of the actions, that the agency will take to overcome any barriers that will limit competition for future requests of similar supplies or services:

This document would be the first of its kind in Region VIII. It is anticipated that this document will cover FEMA actions in the state of South Dakota for next five years. At that time, a new document would not need to be drafted, merely the old one may be amended.

Thus, there should not be the future need to request similar services.

8. Any additional information that supports the sole-source acquisition:

Significant cost savings are anticipated as a result of applying the programmatic agreement and eliminating the need for the approximately 1420 individual consultations between FEMA and USFS. Consultations average about each depending on the complexity of the proposed project. Total cost avoided could be as much as .

Final numbers could fluctuate depending on actual damages, but savings realized through use of the agreement would still be significant.

CERTIFICATION

I certify that statements checked, and information provided above are complete and correct to the best of my knowledge. In accordance with FAR 13.106-1(b)(1), the processing of this sole-source justification precludes the use of full and open competition.